In contrast, the GM/Toyota matter is currently in a public comment proceeding in which any interested persons, including Congress, can file comments. Secondly, Chairman Florio has made perfectly clear that he recognizes that the ultimate decision on this matter is up to the Commission alone. When we are not in formal adjudication, but in the pre-complaint investigational stage, the law requires only that the agency simply make its own decision rather than one dictated by Congressional pressure. We would have to assume that the Committee will attempt to coerce us something it says it has no interest in doing and that we - would cave in to Congressional pressure intention of doing - - - something we have no to arrive at the conclusion that the applicable legal standard would be violated. We can and should assume that Congress and the Commission will act properly and in a way that can contribute to public understanding and comment on our tentative decision, which is, after all the purpose of the comment period in the first place. We have already had a dispute about release of information concerning this matter. Commisioner Bailey and I felt more information should be released; the majority, following the General Counsel's advice, disagreed. Finally, of course, there continues to be a fundamental disagreement over whether the GM/Toyota joint venture should be challenged by the Commission or whether the consent agreement, which essentially allows the parties to operate the venture as planned, is the proper course. The public has a right to understand these issues and the Congress has a right to inquire about them. NINETY-EIGHTH CONGRESS JOHN D DINGELL MICH, CHAIRMAN JAMES H SCHEUER NY BARBARA A MIKULSEL MD. AL SWIFT, WASH. MICKEY LELAND, TEX MIKE SYNAR OKLA. W. J BILLY TAUZIN LA RON WYDEN, OREG RALPH M. HALL, TEX DENNIS LECKART, ONIO BILL RICHARDSON, IL MEX JIM SLATTERY, KANS. GERRY SIKORSK), MINA JOHN BRYANT, TEX JIN BATES, CALIF JAMES T BROYHILL N.C. WILLIAM E DANNEMEYER CALIF. DON RITTER PA DAN COATS, IND THOMAS J BULEY, JR. VA MICHAEL G OXLEY, OHIO HOWARD C. NIELSON, UTAM FRANK M. POTTER, JR. CHEF COUNSEL AND STAFF DIRECTOR U.S. House of Representatives Washington, D.C. 20515 February 1, 1984 I have received a copy of your letter of January 27, 1984, to Chairman Florio concerning his request that the Commission Members testify on February 8, 1984, concerning the proposed General Motors-Toyota joint venture. Your letter states that the second of your two reasons for seeking a postponement of the hearing date is "to avoid even the appearance of unwarranted influence" in the Commission's "decision and potential criticism, however unjustified," that the FTC's "final decision was influenced" by the Commission's participation. You indicate that the problems presented by your testimony "are similar to those discussed in the leading judicial decisions" to which you refer in your letter. As you know, those decisions do not question the right of a Committee or Subcommittee to hold oversight or legislative hearings, such as the one scheduled by Chairman Florio, during the pendency of an agency action or proceeding. Similarly, the cases that you cite do not suggest that hearings per se will lead to situations where a later judicial challenge may result in the reversal of an agency's actions on the basis that there has been an "unwarranted Congressional interference" with the agency's decisionmaking. Further, it is not unusual for an agency to claim broader interpretations of these judicial decisions than is warranted in the circumstances. I note that, in this case, the Commission has not declined to testify on February 8, but has rather urged a postponement until you make a final decision. You suggest that to be the "wiser course. In the alternative, you suggest that the Commission's staff testify in lieu of the Commission Members. N To better understand your concerns, I would appreciate your outlining for me in writing the specific areas of inquiry concerning this matter that you believe could (separately or collectively), if examined by the Subcommittee, lead a court to conclude that the agency's action is invalid because of improper pressure. I note your reference to the Commission procedures in this case and your conclusion that Congressional inquiry into them "would appear impossible ... without explaining why, how, and on what basis the decision was made." Without indicating my agreement or disagreement, I ask you to explain more fully the reasons for this conclusion. I would also appreciate receiving the Commission's "legal analysis" mentioned by Commissioner Bailey. I have to tell you that I strongly hold that the Congress should not be inhibited in its oversight and legislative functions by the mere threat of possible judicial reversal or delay of an agency action on the grounds that such congressional action will taint that action. My experience is that the courts, at least at the appellate level, are not quick to find improper congressional influence and, in fact, will avoid such findings except in extreme circumstances. Nevertheless, I do recognize the possibility and my institutional responsibility as Chairman of the Committee causes me to be particularly cautious in order to avoid the creation of bad law that could inhibit Congress and the Committees in later inquiries. 1984. I would appreciate your response by noon on February 6, Thank you for your letter of February 1, 1984, inquiring into our concerns about appearing on February 8th to testify before Chairman Florio's Subcommittee concerning the proposed GM/Toyota joint venture. Nor We would like to take this opportunity to emphasize that we do not dispute, in any way, the Subcommittee's authority to hold such a hearing. do we dispute, in any way, the Subcommittee's authority to ask any question it chooses on this or any other Commission matter. The cause for our concern has always been that a hearing into this matter at this time which directly involved Commissioners would pose potential legal hazards which, under certain circumstances, might provide a basis for challenging, and possibly overturning, enforcement decisions the Commission might ultimately make. In his letter of invitation dated January 24, 1984, Chairman Florio stated his intention to hold a hearing to examine whether the procedures used by the Commission in considering the GM/Toyota joint venture were unfair and the effect of our provisional decision on the automobile industry, as well as trends in that industry. (We believe that the Commission's handling of the GM/Toyota matter has been scrupulously correct and we have entertained every point of view presented to us.) In writing to Chairman Florio on January 27, 1984 (Commissioner Pertschuk dissenting), we expressed certain concerns and requested postponement of the hearing or else the substitution of members of the staff for Commissioners. We expressed those concerns because of potential legal problems posed by our testimony in light of the fact that we have not yet reached our final decision in the matter. In rejecting our request by letter dated January 31st, Chairman Florio has indicated he believes the Commission should testify despite those potential legal complications. Our concern is that if the hearing were held according to Chairman Florio's current plan and the Commission later decided to take enforcement action against the joint venture - including the entry of a final consent order -- the Subcommittee's inquiry might subsequently be cited as improper pressure sufficient to invalidate our action. That is, if a court were to find that the hearing influenced the Commission in making its decision, the Commission's action could be overturned. On the other hand, we are confident this possibility would be remote if the hearing were postponed until after the Commission had made its decision in the matter or if staff were called to testify instead. It is important to note that the bases on which such a legal challenge to our subsequent action might rest are not found only in the individual questions that might be asked of us but rather the entire context of the hearing, including comments that might be made by individual members of the Subcommittee. As we understand the law, if from the course of the hearings it appears from questions, comments or otherwise that the Subcommittee were seeking to influence the Commission's decision in this law enforcement matter, an inference of Congressional pressure, whether or not warranted, might be drawn. The probability of such an inference would increase to the extent members of the Subcommittee expressed a preference that the agency take a particular course of action. We cannot say at this time that any specific line of questioning would necessarily lead to a reversal of the Commission's subsequent actions. Nevertheless, we believe that questions that seek to probe the mental decisionmaking processes of individual Commissioners or to call for a judgment on substantive issues present the greatest potential hazard to any subsequent enforcement decision. Such questions could include, for example, what the Commissioners think of particular recommendations made by staff or consultants, how they view specific evidence resulting from the investigation, and what they said to each other in the process of deliberation. |